Deliberation in practice: the use of mini-publics in contemporary democracies

An event organised by We the Citizens, in cooperation with the Royal Irish Academy and the G1000 (Belgium)

This event is designed to coincide with the establishment of the Irish government’s constitutional convention. This is the first time an Irish government has involved ordinary citizens in discussions about constitutional reform. Mini-publics may be a relatively new phenomenon to Ireland, but their use is quite widespread in a number of other countries, such as the Icelandic constitutional council, the British Columbia citizens’ assembly, the Dutch citizens’ forum, or the Belgian G1000 citizen summit. This event aims at reviewing these and other examples of deliberation in practice.

The participants include some of the world’s leading experts in the field:

Ken Carty (University of British Columbia) – the academic director of the British Columbia Citizens’ Assembly (Canada)

3 thoughts on “Deliberation in practice: the use of mini-publics in contemporary democracies”

“This event is designed to coincide with the establishment of the Irish government’s constitutional convention.”

So do we have a firm date for the initiation of this CC charade? Has a chairperson been appointed? Have the cushy expert advisory group positions been filled? Have the 66 unfortunate citizens been selected to be press-ganged in to providing background colour for this charade?

The proposed constitutional amendment is as follows:
“1.1. Referendum Bill
The Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 sets out the wording of the proposed Referendum.
The existing Article 15.10o would be renumbered 15.10.1o
Three new Subsections would be inserted as follows:-
2º Each House shall have the power to conduct an inquiry, or an
inquiry with the other House, in a manner provided for by law, into any
matter stated by the House or Houses concerned to be of general public
importance.
3° In the course of any such inquiry the conduct of any person
(whether or not a member of either House) may be investigated and the
House or Houses concerned may make findings in respect of the conduct
of that person concerning the matter to which the inquiry relates.
4° It shall be for the House or Houses concerned to determine the
appropriate balance between the rights of persons and the public interest
for the purposes of ensuring an effective inquiry into any matter to which
subsection 2º applies.”
The proposed new subsections 2 and 3 seem reasonable enough to me. Would allow the Oireachtas to launch inquiries with tribunal-style powers and make findings of fact (basically overturning Abbeylara). Am no legal expert but I’d be a lot more dubious about proposed subsection 4. I can understand the reasoning behind it. We don’t want tribunal-level costs for Oireachtas inquiries. Maybe the balance between the public interest and private rights should be tilted more towards the public interest. But subsection 4 seems to hand over complete control to the Oireachtas as to where to draw that line. It seems to allow huge scope for private rights to be trampled over in the “public interest” (as defined purely by the Oireachtas) with little or maybe no recourse to the courts. Probably something more subtle and nuanced was called for. Seems like a rushed and rather lazy carte blanche to me. Surely some better and more complex wording could have been arrived at?
Finbar’s ‘rushed and lazy’ judgement on sub-section 4 is apt, but I would describe the whole effort as cunning. And it is cunning on two levels. First, this effort allows the Government to blow its trumpet loudly about how it is increasing the powers of the Oireachtas, but this effort is focused entirely in a post hoc, ex post, reactive manner when there is a prima facie case

INTRODUCTION
The Chief Justice in his judgment has helpfully set out in some detail the factual and procedural history of the Oireachtas Subcommittee Inquiry in relation to the shooting at Abbeylara. It has always been part of the respondents’ case that many aspects of the procedures adopted were irregular and defective and that these had the effect of nullifying any subsequent steps. For the most part the respondents’ submissions in this regard were accepted by the Divisional Court. I will return to them in due course but I propose first to treat of the much more fundamental objection to the inquiry made by the respondents and which was also an objection upheld by the Divisional Court to the effect that this inquiry was being conducted pursuant to an alleged inherent power which did not in fact exist. The Divisional Court made a declaration in the following terms:
“The conduct of a public enquiry with the aid of the power of the State and conducted by members of the Oireachtas under the aegis of the Houses of the Oireachtas and with the authority thereof liable to result in finding of facts or expressions of opinion adverse to the good name, reputation and/or livelihoods of persons not members of such Houses is ultra vires the powers of such Houses.”

The exercise of analysing the true meaning and intent of each of the expressions in this form of declaration is not without difficulty. For instance, it is not entirely clear what is meant by “with the aid of the power of the State” nor I think is it entirely clear as to the extent to which a literal interpretation is to be given to the words “liable to result in”. But I do not propose to engage in that analysis because although for the most part I am in agreement with the Divisional Court as to the lack of inherent power, I am not altogether happy with that form of declaration. It is, relevant to note that at no stage in the Judicial Review proceedings was it suggested that the Houses of the Oireachtas had no “inherent” power to inquire into anything at all in any circumstances nor has the Divisional Court made any such suggestion in its findings and orders. To that extent the declaration is limited. It is difficult to define what exactly the limits intended by the Divisional Court are but in due course I will try and articulate where I think the limits lie.

It is not in dispute and, indeed, it clearly emerges from the exchanges between Mr. Rogers, S.C., counsel for the gardaí and the subcommittee that the subcommittee felt perfectly free to carry out a thorough reinvestigation of the Abbeylara incidents and come up with their own findings (for this purpose it matters not whether the so called “findings” can be described as findings of fact or opinions) as to what happened and who was to blame. I think it fair to say that the subcommittee did not see itself in any different position in terms of what it was entitled to investigate and discover from that of a tribunal established under the Tribunals of Inquiry (Evidence) Act, 1921. It is agreed by all parties that nowhere in the Constitution is there such an express power and, therefore, I do not find it necessary to review the Constitution article by article. It is argued however that there is an inherent power.

There are four reasons why I consider that there is no inherent or implied power in the Oireachtas committees or subcommittees to make fact finding inquiries leading to formal expressions of findings or opinions as to culpability of named or identifiable individuals. These reasons are:-

1. With the possible exception of the Congress of the U.S.A., such powers in other parliaments in common law jurisdictions derive directly or indirectly from the traditional powers in the British Houses of Parliament the historical basis of which is inconsistent with our principle of separation of powers clearly enshrined in the Constitution.

2. The public discredit of parliamentary inquiries as of the time of the enactment of the present Constitution.

3. The obligation under Article 40.3.2 that the State should by its laws protect “as best it may” from unjust attack the good name of every citizen. The claimed inherent power was unnecessary given that the known and respected machinery for an independent non-political investigation of matters of public concern existed pursuant to the provisions of the Tribunals of Inquiry (Evidence) Act, 1921.

4. Given the inherent likelihood of structural bias or at the very least the immense practical difficulties in avoiding objective bias coupled with the fact that such bias issues would be justiciable in the courts, it would seem unreal to suggest that on some purely theoretical basis the claimed inherent power must be read into the Constitution.

I will now expand on each of these four reasons.

The historical origins of such inherent powers

The Attorney General, counsel for the committee and Mr. Shatter all concede that if under the Constitution there is such an inherent power, it derives from a perusal of the Constitution itself albeit in the context of surrounding circumstances including the circumstance that other parliaments such as the U.K. Parliament and the U.S. Congress claimed and in the case of the U.S. Congress actually exercise such powers. What is important is that none of the appellants suggest that the alleged inherent power is simply a natural follow on from an equivalent inherent power being contained in the 1922 Constitution and which in turn derived its inherent powers from the historical fact that the imperial parliament had such power.
If that case was open to be made it would have been a much easier one to pursue but it was accepted by all sides that a plausible argument to this effect could not be made having regard to the historical origin of the House of Commons power to conduct such inquiries. The House of Commons traditionally claimed not merely the power to conduct such an inquiry but also to compel attendance of witnesses and punish in default without there being any statutory power to do so, this power having derived from the historical claim of the British Parliament to be effectively a court as well as a legislature and the powers were exercised by Parliament in its capacity as the High Court of Parliament. But all of this is quite inconsistent with the separation of powers effected by Bunreacht na hÉireann.

Given the historical root of the power, any continued assertion of such power (albeit not exercised) is therefore neutral evidence as to whether such powers naturally inhere in parliaments generally in the common law world or perhaps more broadly in the civilised world. It is perfectly clear that in British jurisprudence this power was considered to belong to the U.K. Parliament by virtue of its own history and not by virtue of any general common law principles relating to parliaments in general and this fact is underlined by Privy Council decisions to the effect that such powers were not inherent in the legislatures of British colonies. From what has been written by scholars and commented upon by judges it seems clear that the 1922 Constitution even though absorbing some British constitutional practices was intended by its draftsmen to be a new creation and not to give rise to implied derivatives. In their written submissions before this court the respondents have drawn the court’s attention to the fact that at the time of the drafting of the 1922 Constitution consideration was given to the existence of a parliamentary inquiry along the lines of the American Congress when the institutions of State were conceived. There were originally proposals that a system of committees similar to the American committees and having similar powers would be established. The draft known as Draft C of the Free State Constitution in Article 15 contains the following provision which is set out in the written submissions.
“The House has the right – which on the motion of one third of its members becomes an obligation – to appoint committee of inquiry. Details as to the election, number and procedure of such committees shall be determined by Standing Orders or special resolution. The courts and administrative authorities are bound to produce evidence and documents before such committees …”

Draft C had been put forward by Professor (later Mr. Justice) Murnaghan and Professor Alfred O’Rahilly. The latter was involved in the drafting of the 1937 Constitution and again it is pointed out in the written submissions that Professor Brian Farrell has observed that “there are strong echoes of Draft C to be found in Bunreacht na hÉireann.” (Farrell the Drafting of the Irish Free State Constitution Part III 1971 Irish Jurist at p. 112). In the event no such powers were inserted into either Constitution.

If a power of inquiry of the kind contended for in this case was to be vested in the Oireachtas one would have expected that the Constitution would have expressly said so and that it would then either have been expressly provided that certain appropriate powers of enforcing attendance of witnesses and penalising those who did not would be included or at the very least that there would be provisions in the Constitution expressly contemplating legislation to establish compellability and enforceability powers. There is a useful footnote in the respondents’ submissions at p. 91 which is not contested. In it, it is recited that in Australia section 49 of the Commonwealth of Australia Constitution Act, 1900 expressly vested in the Australian Senate and House of Representatives all of the powers, privileges and immunities of the Parliament of the United Kingdom. It goes on to point out that a similar stipulation appeared in section 18 of the British North America Act, 1867 with reference to the Parliament of Canada. But as the respondents point out what is even more significant is that that formula appeared in the Home Rule Bill, 1912 and the Government of Ireland Act, 1920. There were, therefore, obvious precedents available to be included in the 1922 Constitution and they were not availed of. A natural inference can be drawn that they were not intended to be implied or inherent in that Constitution. If that is so, it seems even less likely that they were intended to be inherent in the 1937 Constitution.

Notwithstanding that the clear historical basis of the inherent powers to conduct inquiries and enforce attendance etc. of the British Houses of Parliament derived from parliament’s judicial role and not its legislative role and that any such powers in the Australian and Canadian Parliaments would appear to have originated indirectly from the same source, it is nevertheless argued on behalf of the appellants that the power to conduct an inquiry such as this particular Abbeylara Inquiry is naturally inherent to any parliament or legislative assembly in a sovereign state. In pursuing this argument the appellants have had to rely primarily on the American case law which of course related to the powers exercised by the U.S.A. Congress.

There is one important preliminary point to be made about the American cases. They are for the most part concerned with a contested right on the part of a House of Congress to punish a person for contempt of the House in the context usually of such person refusing a summons to be questioned or something of that nature. Underlying all the cases is the acceptance of an inherent power in some instances on the part of the Houses of Congress to impose punishment (though in post war years a statute imposing more effective penalties was more usually resorted to), but that very fact influenced the courts in setting limits to the powers of the Houses of Congress to carry out inquiries and investigations. What to some extent complicates this particular case is that nobody is suggesting that the Houses of the Oireachtas have any inherent power to compel or to punish. In so far as they have given themselves any such powers they are contained in statute, a point to which I will be returning. There is considerable force in the argument of Mr. Donal O’Donnell, S.C., counsel for the respondents that the absence of powers of compellability and punishment in the Constitution and the general acceptance that our constitutional jurisprudence would not permit of them being implied is of itself and by itself a strong argument against the proposition that there could be any power in the Houses of the Oireachtas to investigate past events with a view to making “findings” of culpability on the part of named individuals.

Returning to the subject of the American cases the first one of importance is Kilbourn v. Thompson 103 U.S. 168 (1880). In that case it was argued before the United States Supreme Court that the power of a House of Congress to punish for contempt existed and two principal arguments were put forward to support that view. The first was its exercise by the House of Commons of England from which country it was said the United States had derived its system of parliamentary law and secondly, on the basis of the necessity of such a power to enable the two Houses of Congress to perform the duties and exercise the powers which the Constitution had conferred on them. Miller J. in delivering the opinion of the court and after reviewing English authorities but with particular regard to Kielley v. Carson and Others 4 Moo. P.C. 63 decided in 1841 came to the conclusion that the right of the House of Representatives to punish a citizen for a contempt of its authority or a breach of its privileges could derive no support from the precedents and practices of the two Houses of the English Parliament. It had been made clear in the relevant English authorities that the House of Commons and the House of Lords and, indeed, the single House before those two Houses were created were courts of judicature as well as being legislatures and that the powers contended for derived from their judicature role. In Kielley v. Carson Parke B. had delivered the unanimous judgment of a strong court to this effect. But Miller J. also went on to express the view that:
“Nor taking what has fallen from the English judges, and especially the later cases on which we have just commented, is much aid given to the doctrine that this power exists as one necessary to enable either House of Congress to exercise successfully their function of legislation.”
That last statement was obiter dicta because in the event the court decided against Congress on the basis that whatever kind of powers of inquiry Congress might have, it certainly did not have the general power of making inquiry into the private affairs of the citizen which this was.

The next case of importance is McGrain v. Daugherty
273 U.S. 135 (1927). For the sake of brevity, I do not intend to go into the facts of that case. It is sufficient to cite the following passage from the opinion of the U.S. Supreme Court delivered by Van Devanter J. at p. 12 of the printout copy which was before this court.
“We are of opinion that the power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function. It was so regarded and implied in American legislatures before the Constitution was framed and ratified. Both Houses of Congress took this view of it early in their history – the House of Representatives with the approving votes of Mr. Madison and other members whose service in the Convention which framed the Constitution gives special significance to their action – and both Houses have implied the power accordingly up to the present time. The Acts of 1798 and 1857 judged by their comprehensive terms, were intended to recognise the existence of this power in both Houses and to enable them to employ it ‘more effectually’ than before. So when their practice in the matter is appraised according to the circumstances in which it was begun and to those in which it has been continued, it falls nothing short of a practical construction, long continued, of the constitutional provisions respecting their powers, and therefore it should be taken as fixing the meaning of those provisions, if otherwise doubtful. We are further of opinion that the provisions are not of doubtful meaning, but, as was held by this court in the cases we have reviewed, are intended to be effectively exercised, and therefore to carry with them such auxiliary powers as are necessary and appropriate to that end. While the power to exact information in aid of the legislative function was not involved in those cases, the rule of interpretation applied there is applicable here. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information – which not infrequently is true – recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailed of, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry, with enforcing process, was regarded and employed as a necessary and appropriate attribute of the power to legislate – indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two Houses are intended to include this attribute to the end that the function may be effectively exercised.”
This passage helps to remind one of the wholly different practices and, indeed, culture of the U.S. Legislature functioning in a presidential system of government on the one hand and the Irish Legislature functioning in the context of a parliamentary democracy on the other hand. The Irish Parliament like the parliaments of all the European parliamentary democracies and respected non-European parliamentary democracies such as Australia, New Zealand, Canada, India etc. carry on their parliamentary business for the most part in accordance with the plans and policies of the government of the day which in turn is formed out of the political parties. The idea that Dáil Éireann might in its independent existence contemplate the possibility of some form of legislation and seek to initiate a substantial fact finding inquiry aided by provisions regarding the compellability of witnesses etc. for that purpose is to a large extent a fantasy. It may well suit a government to procure that the Dáil would initiate inquiries of one kind or another to allay public worries and with a view to reporting on appropriate legislation but it would be the exception rather than the rule. For the most part, it is the Government and not the Oireachtas which proposes the legislation. Accordingly, the kind of statement which I have just cited from McGrain v. Daugherty is of very little relevance to the Irish situation. That is one reason, among others, why it is difficult to accept the argument that American inquiry practice is an indicator of what the inherent powers of the Oireachtas were intended to be in 1937.

I now move to the case most relied upon by the appellants. That is Watkins v. United States 354 U.S. 178 (1957). The lengthy headnote to that case sets out the principles decided in the opinion of the United States Supreme Court delivered by Chief Justice Warren. It is not necessary to set it out in full but some of the principles held are worth specifically mentioning. It should be explained that this case arose out of conviction of the statutory offence of refusing to answer a question “pertinent to the question under inquiry” in an inquiry of a House of Congress. The investigating body was the Subcommittee of the House of Representatives Committee on un-American Activities and the petitioner in the case had refused to answer questions as to whether he had known certain other persons to have been members of the Communist Party. He based his refusal on the grounds that those questions were outside of the proper scope of the Committee’s activities and not relevant to its work. He succeeded on the grounds that no clear understanding of the “question under inquiry” could be gleaned from the resolution authorising the full committee, the legislative history thereof, the Committee’s practices thereunder, the action authorising the subcommittee, the statement of the Chairman at the opening of the hearings or his statement in response to petitioners’ protest. But some of the more important principles enunciated by the court were as follows:

“1. The power of Congress to conduct investigations, inherent in the legislative process, is broad; but it is not unlimited.

2. Congress has no general authority to expose the private affairs of individuals without justification in terms of the functions of Congress.

3. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of Congress.
4. A congressional investigation into individual affairs is invalid if unrelated to any legislative purpose, because it is beyond the powers conferred upon Congress by the Constitution. Kilbourn v. Thompson cited above.

5. It cannot simply be assumed that every Congressional investigation is justified by a public need that overbalances any private rights affected, since to do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to ensure that Congress does not unjustifiably encroach upon an individual’s right of privacy nor abridge his liberty of speech, press, religion or assembly.

6. In authorising an investigation by a committee it is essential that the Senate or House should spell out the Committee’s jurisdiction and purpose with sufficient particularity to ensure that compulsory process is used only in furtherance of a legislative purpose.”

It is true that Chief Justice Warren makes it clear that a broad interpretation has to be given to legislative purposes. The following passage appears at p. 187 of the report:
“That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress.”
A further passage which is relevant appears at page 198 and reads as follows:
“We cannot simply assume, however, that every Congressional investigation is justified by a public need that overbalances any private rights affected. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to ensure that the Congress does not unjustifiably encroach upon an individual’s right to privacy nor abridge his liberty of speech, press, religion or assembly.”
Running right through the opinion of the court delivered by Chief Justice Warren however is the underlying fact that what the court was talking about was an inherent power to conduct investigations for legislative purposes accompanied by inherent compellability powers (albeit supplemented by statutory powers). It is accepted, as I have already pointed out in this case that no inherent compellability powers exist in our Constitution. Such powers as exist of this nature are created by statute. But that being so, I do not think one can regard the American precedents as being evidence to support an inherent power such as is contended for here under our Constitution.

But even if one was to adopt the principles in Watkins v. The United States as a foundation for implying the controversial powers into the Irish Constitution, in so far as it was being a power exercised, as in this case, by a joint committee of the Oireachtas there would be no need to extend the principles in Watkins as suggested by the Attorney General so as to embrace purposes other than legislative purposes. Dáil Éireann has been given some non-legislative functions by the Constitution but Seanad Éireann almost none. In so far as there is a joint committee of both Houses the purposes must be common to both. I do not propose to consider in this judgment what powers Dáil Éireann may have in relation to its non-legislative functions as that question does not arise. But if it is suggested that there is an inherent power limited to legislative purposes (a form of language which may be inappropriate as I will elaborate on later) then in my view if the inquiry is to be intra vires, the exact legislative purposes must be stated in advance. I see no reason why that should not be done. I do not accept or agree with the theory that provided an inquiry was vaguely connected with matters of public interest it could be regarded as being for legislative purposes. I would not follow the wide definition of legislative purposes emerging in the later American case law particularly having regard to the difference in legislative process as already adverted to and having regard also to its genesis which was in the main the committee for investigating un-American activities, a body of dubious repute. Furthermore even if one is to postulate a legitimate exercise of a supposed inherent power to conduct an inquiry for legislative purposes, the committee or subcommittee conducting the investigation would be obliged to avoid, as far as possible, the attribution of blame and especially apparent criminal misconduct to a named individual. In this case there is nothing to suggest that the subcommittee was confining itself to considering the need for new legislation. Such an inquiry would have to so confine itself and its report should primarily relate to whether there is or is not such a need. A legitimate inquiry by a committee of the Oireachtas which was directed towards a perfectly proper legislative purpose might in some circumstances inevitably and unavoidably lead to implied blame being attached to an individual. That would not necessarily render the inquiry ultra vires and, therefore, I consider that the wording of the declaration made by the Divisional Court is too wide, particularly having regard to the use of the words “liable to”. It is also true that a legitimate Oireachtas investigation may inevitably result in a finding of fault in a management system which in some circumstances could involve an implied attachment of blame to the relevant manager. That might also be legitimate. But the all important point is that the inquiry from the beginning would be merely for the purpose of considering whether new legislation was required and for no other purpose. That was emphatically not the case here. My treatment of the American case law overlaps to some extent the much more elaborate treatment of it by Hardiman J. in his judgment. I would like to add that I am in complete agreement with his commentary on it.

The public discredit of parliamentary inquiries

It was a well known fact at the time of the enactment of the present Constitution and, indeed, at the time of the enactment of the 1922 Constitution that the Tribunals of Inquiry (Evidence) Act, 1921 had been passed in the wake of public discredit of parliamentary committee inquiries. A curious feature of the 1921 Act is that it is resorted to in this case in different ways in support of both the appellants’ case and the respondents’ case. I take the view that the existence of that Act supports the respondents’ case and, for reasons which I will go into in considerable detail later on in this judgment, does not support the appellants’ case.

The background to the 1921 Act is well set out at pages 10-15 of the Royal Commission on Tribunals of Inquiry, 1966 in Britain more usually referred to as the Salmon Commission. The opening paragraph of that brief history reads as follows:-
“From the middle of the 17th Century until 1921, the usual method of investigating events giving rise to public disquiet about the alleged misconduct of Ministers or other public servants was by a select Parliamentary Committee or Commission of Inquiry. Some of the serious disadvantages of this procedure are illustrated by the following examples from the history of the last 300 years.”
The report then goes on to give some examples of the unsatisfactory nature of such inquiries, a matter more fully elaborated upon by Professor George W. Keeton in his book Trial by Tribunal in chapters 2 and 3. But two particular points referred to by Salmon and, indeed, by Keeton are very relevant. Salmon points out that early in the 20th century there was the Marconi scandal. The select committee appointed to investigate the scandal divided in its report along party political lines and this method of investigation became further discredited. But more to the point in the Irish context, Lord Justice Salmon (as he then was) pointed out that even as long ago as 1888 the shortcomings of such committees of inquiry had been recognised. That was the year in which serious allegations were made against Charles Stewart Parnell and others. It was decided that rather than refer the matter for investigation to a select parliamentary committee, a special commission with powers was set up by the Special Commission Act, 1888. This Special Act was effectively a forerunner of the Tribunals of Inquiry (Evidence) Act, 1921. It was considered a success. Finally, in 1921 grave allegations were made by a member of parliament against officials in the Ministry of Munitions and as Lord Justice Salmon puts it “the favourable impression made by the Parnell Commission and the unpleasant flavour left behind by the Marconi Committee of Inquiry were remembered.” He goes on to say that it was felt at the time that the investigation by parliamentary committees of inquiry of alleged public misconduct was entirely discredited and that accordingly new machinery should be created more appropriate to deal not only with that particular current matter but with similar matters which might arise. Hence the enactment of the Tribunals of Inquiry (Evidence) Act, 1921. The draftsmen of the 1922 and 1937 Constitution would have been well aware of that historical backdrop and, therefore, to use the word “inherent” in another context, why should there be any inherent reason for contemplating Oireachtas inquiries leading to findings of personal culpability when a perfectly good statute was in place in the form of the 1921 Act and which has since been held by this court to be consistent with Bunreacht na hÉireann.

But the existence of the 1921 Act and in particular its consistency with the constitution is strongly availed of by the appellants in support of their case, the argument being that in effect parliament merely provided for machinery to delegate powers which it already had to an independent tribunal. I reject that argument and I will be returning to it in some detail later on in the judgment.

Constitutional protection of the citizen from unjust attack and his good name

Article 40.3.2 of the Constitution provides that the State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen. An express constitutional protection of good name is unusual in written constitutions. Even the European Convention of Human Rights does not have an equivalent provision except in the negative sense of providing a justification for restriction on freedom of expression. Most rights in the Constitution are not absolute. Very often, as in this case, they are qualified by expressions such as “as best it may” and in other instances there may be clashes between two constitutional rights and a question of superiority in the hierarchy arises. The protection of the good name of the citizen, therefore, can almost always arguably be rendered ineffective by some semi-plausible proposition balancing the rights of others or the common good. But there is a danger that constitutional rights can be excessively whittled away by arguments based on so called “balance”. In this case the wording of that paragraph in the Constitution is of relevance. In the absence of an express provision for such a controversial type of inquiry in the Constitution, the question must be asked why should a court imply one for the sake of some interest such as the common good when as of 1937 there was perfectly good machinery in place for a type of inquiry which would be perceived by the public to be much more independent than a parliamentary inquiry. If in the interests of the common good, a fact finding inquiry liable to damage the good name of individuals is considered desirable; the 1921 Act is there to be invoked.

In this latter connection it is perhaps interesting to refer to the Standing Orders of the Dáil. Although by virtue of the express provisions of the Constitution no legal redress is ever available for defamatory words uttered in either House of the Oireachtas, Dáil Éireann by its own Standing Orders has been extremely careful to restrict such defamatory utterances within the House as far as possible and in adopting such Standing Orders it must surely have been mindful of the constitutional obligation to vindicate the citizen’s good name as far as possible. Order 58 of the Standing Orders of the Dáil lays down elaborate rules effectively restricting the uttering of defamatory words. A member is not allowed to make an utterance in the nature of being defamatory and where a member makes such an utterance it may be prima facie an abuse of privilege subject to the provisions of the Standing Order. I do not propose to recite the Order in full because it is quite long but it is sufficient to point out that it contains provisions allowing the Ceann Comhairle to take various steps in case of infringement. In some instances the member may be compelled to withdraw the allegation or it may be referred to the Committee on Procedure and Privileges which in turn may lead to a reprimand by the Ceann Comhairle. Interestingly, it is also provided that a document laid before the Dáil under Standing Order 58 “shall not contain any matter the publication of which would have the effect of –

(i) unreasonably adversely affecting or injuring a person or unreasonably invading a person’s privacy in the manner referred to in paragraph 11 of the Standing Order.

(ii) Unreasonably adding to or aggravating any such adverse affect, injury or invasion of privacy suffered by a person.”

It is true of course that the Dáil can change its Standing Orders at any time and it could remove Order 58 with impunity but it is of some significance nevertheless that the Dáil in making its own Standing Orders and with the Constitution in place did not consider it right to allow a free for all as far as defamatory allegations were concerned.

The built in likelihood of perceived bias

A subcommittee such as the appellant subcommittee would be reporting to the joint Oireachtas committee which in turn would be reporting to the Dáil and Seanad respectively. The joint committee, as was customary, was balanced in its membership according to the strength of the political parties. It would only be in rare circumstances that a body composed in that way would be perceived by reasonable members of the public as capable of independent arbitration. I appreciate that this court in approaching the problem of whether there is an inherent power or not has for the most part to consider the position as of 1937 when the present Constitution came into existence. In those days there was no “Questions and Answers”, little media probing of politicians but if anything the public was even more politically aware than they are now as civil war politics infused a large proportion of households. Then, as now, there may not have been a perception of great ideological differences between government and opposition. But political feelings at that time were such that the ordinary member of the public of reasonable disposition would have been even less likely to view an Oireachtas committee determination as truly independent. Even in cases where in the eyes of a reasonable observer bias might not exist merely from the composition of the body, the conduct of an inquiry by such committee or subcommittee is fraught with great practical difficulties if bias in the legal sense is to be avoided. I will be dealing with that topic in more detail later on in this judgment. From the point of view of the Oireachtas none of this would matter if bias issues were non-justiciable but for the reasons given later in this judgment, I am quite satisfied that such issues are justiciable. Having regard therefore to the combination of the inherent likelihood of structural bias or at the very least the obvious difficulties in avoiding objective bias in any given case, I see no reason to infer that the framers of the Constitution and the people in enacting it intended that such powers should inhere in the Oireachtas.

Two of the most important arguments made by the appellants in favour of the inherent power are firstly that the form of inquiry the subject matter of In re Haughey [1971] I.R. 217 was unlawful if the arguments of the respondents are correct and secondly, that the logic of the jurisprudence of this court in its approach to the 1921 Act displayed in Goodman v. Hamilton [1992] 2 I.R. 542 and Haughey v. Moriarty [1999] 3 I.R. 1 leads to the conclusion that the powers of the 1921 Act Tribunals are derived from Parliament and that Parliament itself always had those powers.

The In re Haughey argument

The argument based on In re Haughey was addressed by the Divisional Court at p. 91 of its judgment as follows:
“The respondents contend that the argument made concerning the lack of an inherent jurisdiction to conduct an inquiry of the type in suit runs counter to the decision of In re Haughey. Despite the extensive nature of the argument made in that case it does appear that this point was never argued. A point not argued is a point not decided. It may not have been raised for any number of reasons. One perhaps was that the particular inquiry in that case was being carried out with specific statutory powers pertinent to that inquiry. For whatever reason the point was not argued or decided and therefore we do not think that the decision in In re Haughey can be relied upon as providing judicial authority for the notion of an inherent power to conduct an inquiry of the type involved in this case.”
As to the relevance of In re Haughey I can say no more than what was contained in that paragraph, though I do not think that the “specific statutory powers pertinent to that inquiry” either add to or subtract from the arguments of either side. The Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970 was essentially an Act providing for procedures and compellability as is the case with the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997. The passing of an Act for the purposes of exercising alleged powers cannot be used as evidence of the existence of such powers. At best it is evidence of the Oireachtas believing it had such powers. There is no doubt that In re Haughey was carefully and successfully argued by a counsel who is acknowledged as the outstanding constitutional lawyer of his time and yet the case against the inherent power was not made. Like the Divisional Court, I take the view that speculation as to why it was not made is irrelevant but it is possible that the reasons were tactical. At any rate as the Divisional Court pointed, out it is quite clear that In re Haughey cannot be regarded as authority for the existence of the inherent power contended for.

The Tribunal Case Law Argument

In relation to the second counter-argument it is essential to revisit and reconsider the provisions of the Tribunals of Inquiry (Evidence) Act, 1921. I can find nothing in either the genesis or the terms of that Act to support the view that Parliament in enacting that Act was effectively providing for the delegation in some circumstances of its own powers of inquiry to an independent non-political tribunal. I will start by attempting to analyse section 1 of the 1921 Act without reference to subsequent case law and having done so I will move on to consider the alleged relevance of Goodman International v. Hamilton cited above and Haughey v. Moriarty cited above.

Section 1(1) of the 1921 Act reads as follows:
“Where it has been resolved (whether before or after the commencement of this Act) by both Houses of Parliament that it is expedient that a tribunal be established for inquiring into a definite matter described in the Resolution as of urgent public importance, and in pursuance of the Resolution a tribunal is appointed for the purpose either by His Majesty or a Secretary of State, the instrument by which the tribunal is appointed or any instrument supplemental thereto may provide that this Act shall apply, and in such case the tribunal shall have all such powers, rights, and privileges as are vested in the High Court, or in Scotland the Court of Session, or a judge of either such court, on the occasion of an action in respect of the following matters:-
(a) The enforcing the attendance of witnesses and examining them on oath, affirmation, or otherwise;

(b) the compelling of the production of documents;

(c) subject to rules of court, the issuing of a commission or request to examine witnesses abroad;

and a summons signed by one or more of the members of the tribunal may be substituted for and shall be equivalent to any formal process capable of being issued in any action for enforcing the attendance of witnesses and compelling the production of documents.”

In interpreting this subsection there would probably be general agreement that Parliament was not thereby investing in its respective Houses statutory powers to make resolutions of the kind described. It was assumed (and I think assumed correctly) that the Houses already had such powers. If, for instance before the enactment of the 1921 Act, the two Houses of Parliament had each passed resolutions on some occasion that it was expedient that a tribunal be established by the executive to inquire into a particular matter it would never have occurred to anybody that there was something invalid or ultra vires about such a resolution. If, following on the resolution, the executive set up an inquiry, the inquiry in question prior to 1921 would not have had the benefit of the powers which it had following on the 1921 Act but that is the only difference.

From and after passing of the 1921 Act, once a resolution in those terms has been passed by each House of Parliament the executive when setting up the tribunal if it decides to do so (an option to which I will return) may state in the instrument setting it up that the Act is to apply and then all the consequences under the Act relating to discovery, compellability etc. come into play.

In addition to the assumption underlying the subsection that either House of Parliament could, at any time and in any circumstances, pass a resolution that it be expedient that a tribunal be established for inquiring into some definite matter, there is a second underlying assumption. In its original form that assumption was that “His Majesty or a Secretary of State” could as part of his inherent executive powers set up such an inquiry. On the wording of the subsection it might be just about open to argument that it is Parliament which effectively sets up the tribunal and that the instrument executed by “His Majesty or a Secretary of State” was not intended to be an executive act as such but merely an administrative act or in other words a piece of paper work pursuant to the instructions of Parliament. The subsection has never been interpreted in that way and it is not contended for in this case. All the well known tribunals in modern times such as Whiddy, the Stardust, the Kerry Babies, the Beef Tribunal, the Dunnes Payments Tribunal etc. have all reported to either the Taoiseach or a particular Government Minister who established the tribunal. It seems clear that the tribunal envisaged by the 1921 Act is an executive tribunal or rather a tribunal established pursuant to inherent executive powers but by virtue of the 1921 Act and consequent on the instrument setting it up, the tribunal, although an executive tribunal, has a number of powers conferred on it by Parliament. The tribunal is not, however, an agent of Parliament.

My view on this does not count if the Supreme Court has already held otherwise and it is suggested that it effectively has done so. The two cases relied on in this regard are Goodman International v. Hamilton and Haughey v. Moriarty cited above. I do not think that my suggested interpretation is in conflict with those decisions and I turn to consider them now.
Since the Supreme Court on appeal in the Goodman International case upheld the views of Costello J. in the High Court, it is important first to consider the judgment of Costello J., but it is even more important to consider the context in which it was delivered. The principal issue in the Goodman case was whether there was an infringement of the separation of powers in that allegedly the tribunal was administering justice. Both the High Court and Supreme Court rejected that argument. But in the course of his judgment Costello J. made the following observation at p. 554 of the report:-
“It is obvious that, if these claims are correct, the powers of Parliament to inquire into matters of public importance, both through its own committees and by means of tribunals of inquiry, are severely circumscribed by the Constitution.”
I do not think that on any fair interpretation of that sentence the learned High Court judge was suggesting that any inquiry into matters of public importance could be conducted either by a Dáil committee or by a tribunal of inquiry interchangeably. I doubt very much if any such concept was in his mind when he framed that sentence. On the same page of the report Costello J. gives the following analysis of the basis for 1921 Act Tribunals with which I agree and which is accepted by the respondents in their written and oral submissions. The passage in question reads as follows:
“There is no statutory provision which empowers the establishment of this tribunal either by the two Houses or the Minister. It is established by an administrative Act, that is by the order of the Minister of the 31st of May 1991. The Government or any Minister can inquire into matters of public interest as part of the exercise of its executive powers, but if this is done without reference to Parliament then the inquiry will not have the statutory powers which are to be found in the Tribunals of Inquiry (Evidence) Act, 1921, and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979.”
Costello J. then, however, goes on to use an expression that was probably perfectly apt in the sense that he intended it but which unfortunately is open to other interpretations. He said that the resolutions of the two Houses contemplated by the 1921 Act was “in effect a direction to the Government or the relevant Minister to establish such an inquiry”. The word “direction” appears nowhere in the 1921 Act nor does any cognate word. But in using the expression “in effect” what Costello J. was intending to convey in my view is that for all intents and purposes such resolutions would be regarded as a direction by Parliament to the Government. Clearly, such resolutions would have immense political force and immense moral force. But I doubt very much that he had in mind that some kind of order of mandamus or its equivalent could be obtained by anybody or in any circumstances from a court directing the Government or the relevant Minister to establish an inquiry. At p. 558 of the report Costello J. makes another important observation:-
“The Constitution enjoins all public authorities, including the two Houses of the Oireachtas to protect and vindicate the good name of every citizen (Article 40, s. 3 sub-s. 2). If disparaging allegations of wrongdoing by a citizen are made (either in Parliament or outside of it) and if the two Houses conclude that the public interest requires that these allegations be investigated, I do not think they are prohibited from directing the establishment of a tribunal of inquiry because of this constitutional duty. The holding of an inquiry into disparaging allegations will, of course, give them fresh circulation. But if the public interest requires that they be investigated and if procedures are adopted which permit the person accused of wrongdoing to rebut the allegations and clear his name, I do not consider that any breach of constitutional duty occurs by the establishment of the tribunal.”

What the learned judge is saying here is that despite the constitutional protection of one’s good name a balancing against that of the public interest may require the holding of an inquiry into disparaging allegations which would give them fresh circulation. As I understand it, the respondents are not disputing that proposition and, indeed, in this case at least they are not necessarily arguing that an Oireachtas committee, if it had the statutory powers could not perform that function, but they are arguing that they would have to have the power first and that they do not in fact have the power and that one (among others) of the reasons why it would be wrong to read into the present Constitution such an implied power is because any such balancing act as envisaged by Costello J. in relation to the vindication of one’s good name must be done in such a way as to cause the minimum unnecessary damage. The respondents say that 1921 Act Tribunals which are not contrary to the Constitution perform that function admirably.

The judgment of Costello J. upholding the Beef tribunal was appealed to the Supreme Court and the appeal was dismissed. The judgment of Finlay C.J. is primarily concerned with the argument that the tribunal was administering justice and in relation to the matters which are potentially relevant to these proceedings he effectively endorsed the views of Costello J. But Hederman J. at p. 597 of the report dealt with the nature of tribunals established under the 1921 Act. He had this to say:-
“But in any parliamentary democracy it is essential that the Parliament should have powers to initiate inquiries. Many inquiries have in the past emanated from something said in Parliament. By Article 15, s. 12 of the Constitution absolute privilege attaches to whatever is said in the Houses of the Oireachtas.

In the course of his submissions, counsel for the applicants put forward the possibility that there could be established a tribunal comprised exclusively of Dáil Deputies. It was the failure of such a select committee of Parliament in regard to the Marconi scandal contrasted with the success of the Parnell Commission which had been established by the Special Commission Act, 1888 that led to the passing of the Act of 1921. The Royal Commission on Tribunals of Inquiry, 1966 (under the chairmanship of Lord Justice Salmon, Cmnd. 3121) sets out the historical background to the legislation and advocates the continuation of such tribunals as being an essential concomitant to the efficient working of Parliament in contrast to inquiries or tribunals that do not have the necessary powers to compel witnesses and so forth.”
This passage and some of the remarks which followed from Hederman J. would seem to indicate that he found this necessary power in a parliamentary democracy to “initiate inquiries” in the structure of the 1921 Act. And I do not think that anything that he said in that judgment lends support to the kind of inquiry contemplated in relation to Abbeylara.

Turning now to Haughey v. Moriarty and to the judgment of Hamilton C.J. in relation to the matters raised other than the constitutionality of the Act. At p. 53 Hamilton C.J. undoubtedly refers to “the inquiry mandated by the resolution and order made in the present case”. But when read in context I am satisfied that “mandated” meant nothing more than what I have already suggested was meant by “directed” in the judgment of Costello J. in the Goodman case. But later on in the same page the following observations of Hamilton C.J. appear:-

“It may be the case – and is almost invariably the case – that a tribunal established under the Act of 1921 is empowered to make recommendations as to legislative or administrative reforms which appear to it to be desirable having regard to its findings. That is so in the case of the tribunal now under consideration. But it is by no means the only purpose for which such a tribunal may be established. In the report of the Royal Commission of Tribunals of Inquiry, 1966 in the United Kingdom under the chairmanship of Salmon L.J. (hereafter the Salmon Report) the following passage appears at paragraph 27.
‘The exceptionally inquisitorial powers conferred upon a tribunal of inquiry under the Act of 1921 necessarily exposed the ordinary citizen to the risk of having aspects of his private life uncovered which would otherwise remain private, and to the risk of having baseless allegations made against him. This may cause distress and injury to reputation. For these reasons, we are strongly of the opinion that inquisitorial machinery set up under the Act of 1921 should never be used for matters of local or minor public importance but always be confined to matters of vital public importance concerning which there is something in the nature of a nationwide crisis of confidence. In such cases we consider that no other method of investigation would be adequate.’
And again at para. 28:-
‘The inquisitorial procedure is alien to the concept of justice generally accepted in the United Kingdom. There are, however, exceptional cases in which such procedures must be used to preserve the purity and integrity of our public life without which a success for democracy is impossible. It is essential that on the very rare occasions when crises of public confidence occur, the evil, if it exists, shall be exposed so that it may be rooted out; or if it does not exist, the public shall be satisfied that in reality there is no substance in the prevalent rumours and suspicions by which they have been disturbed. We are satisfied that this would be difficult if not impossible without powers of investigation by an inquisitorial tribunal possessing the powers conferred by the Act of 1921.’
Those considerations are also applicable in this jurisdiction. There are various models which may be availed of by the Oireachtas and the Executive in the form of commissions or committees, in the latter case, either within the Oireachtas or external to it, for the purpose of advising them as to the desirability of legislation on particular topics. The essential purpose, however for which a tribunal is established under the Act of 1921 is to ascertain the facts as to the matters of urgent public importance for which it is to inquire into and report those findings to Parliament or the relevant Minister.”

I think it is clear from this passage that Hamilton C.J. was not intending in any way to equate tribunals under the Act of 1921 with Oireachtas commissions and committees. On the contrary, he was contrasting different forms of bodies suitable for different purposes. Indeed, this is even more clear in the succeeding passages in the judgment in which he, like Hederman J. in the Goodman case, refers to the history of tribunals as set out in the Salmon Report and the work of George W. Keeton and in particular the contrast between the independent commission set up in relation to the Parnell allegations and the disastrous House of Commons Inquiry into the Marconi affair. It is then worth quoting the former Chief Justice’s comments in the next paragraph which is at p. 55 of the report.
“The underlying policy of the Act of 1921, as subsequently amended, is thus not in doubt. It is to provide the machinery, wholly independent of the political process, whereby matters of grave public concern may be investigated and the true facts brought to light. Such an inquiry, generally but not necessarily conducted by one or more judges, typically takes the form of an investigation such as the present into circumstances which have raised the possibility of corruption or other impropriety in public life. The terms of the legislation, however, do not restrict the Oireachtas and the Executive to initiating such an inquiry to that area: the ‘definite matters’ of ‘urgent public importance’ can obviously extend to disasters involving loss of life and serious injury such as were the subject of the Whiddy Island Disaster Report (1979) and the Stardust Fire Report (1982).”
This passage was in the context to some extent of making it clear that a 1921 Act Inquiry did not have to be in aid of the legislative process but there does not appear to be a phrase or a sentence in that judgment which supports the view that there is an inherent power in the Houses of the Oireachtas to conduct any kind of inquiry for which the 1921 Act could have been availed of.

The statutory powers argument

While those are the principal arguments put forward in favour of the inherent power it has also been submitted that the court should take into account that the Oireachtas itself and its predecessor the Oireachtas of Saorstát Éireann must have considered it had such powers or so the argument runs having regard to the Acts passed in aid of the exercise of such powers. The first of these Acts is the Oireachtas Witnesses Oaths Act, 1924. That Act provided for the administration of Oaths by the Houses of the Oireachtas and Committees thereof and for a penalty for false evidence based on the penalties. That Act is still applicable to the current Oireachtas but it does not seem to be relevant to the question of whether an inquiry such as the Abbeylara Inquiry is within the powers of the Oireachtas. It is not suggested by the respondents that the Houses of the Oireachtas are precluded from inquiring into anything.

The second statute in this connections is the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970 already referred to. This was an Act designed for a special purpose. It was intended to protect and give additional powers including compellability powers to the Committee of Public Accounts of Dáil Éireann “while engaged in the performance of the functions assigned to it by order of Dáil Éireann made on the 1st day of December 1970″. It was a limited Act for a limited purpose. As I have already indicated it does appear to have been enacted under the underlying assumption that that committee had an inherent power to conduct an inquiry of the kind now impugned. But as I have also observed earlier on in this judgment it is not legitimate to work backwards from that Act to prove the existence of an inherent power.
It is exactly the same position with the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997. This is an elaborate piece of general legislation conferring wide powers on Oireachtas Committees and Subcommittees to compel the giving of oral evidence and to compel discovery and production of documents and, indeed, there is a general power given to “give any other directions for the purpose of the proceedings concerned that appear to the Committee to be reasonable and just”. There are then special provisions exempting certain evidence. As has already been pointed out the compellability power can only be carried out with the consent in writing of “the appropriate subcommittee”. In relation to a committee appointed jointly by both Houses of the Oireachtas or a subcommittee of such a committee this means a subcommittee appointed jointly by the Committee on Procedures and Privileges of each such House. The long title of the 1997 Act is:
“an Act to make provision regarding compellability and the privileges and immunities of witnesses before committees of the Houses of the Oireachtas and to provide for related matters.”
It is not in dispute that it is a procedural Act only and it does not confer any powers of inquiry on either House of the Oireachtas. It is remarkable that that Act was passed sixty years after the Constitution came into force. Whilst effectively that Act may be used for some forms of legitimate inquiry, it cannot be availed of as a basis of proof of the existence of the inherent power contended for in this case.

The sterile effect argument

The appellants also submit that the so called “findings” are sterile of effect and are therefore unobjectionable. In relation to this argument, I am in agreement wi